Sunday, April 18, 2010

Movin' On Up, to the First Chair - The Fate of Women Trial Lawyers

There are many fine trial lawyers who are women.  More women are trial lawyers. Many more than when I started in practice.  But, we need more women willing to go to trial.  This blog is for those who have not made it to the first chair, perhaps not even to the second chair.  This is for the woman who is afraid, like the rest of us, and who wonders if there is something wrong, if she is just too scared.  This blog is for the "everywoman" lawyer who wants the best for her client but fears she is not good enough, not strong enough, not tough enough.

I never thought I would quote Franklin Roosevelt, but his statement, "The only thing we have to fear is fear itself" is apt, not only in life, but especially in trial.  We usually imagine things much worse than what really happens in everyday life. Fear of failure is much worse than failure.  Fear of anything is worse than just about anything you can be afraid of.  We are all afraid at times.  Even the biggest, strongest, toughest male lawyer gets scared in trial.  We need to just do, even if we are afraid.

 In my opinion, a trial lawyer needs to be able to do the following;

1.  Listen.  Listen wholeheartedly and completely without thinking or experiencing anything else.  Listen and be present.

2.  Care.  Care for your client.  Figure out what you love about your client.  Figure out what irks you about your client and what that trait reminds you of in you and why it irks you so.

3.  Understand.  Understand your opponents, both parties and lawyers, and why they are doing what they are doing.  Understand your client.  Understand the jury.

Most lawyers, most people, can listen, care and understand.  Most people could try a case  We, as lawyers, complicate things and forget our real purpose. We make it seem too hard, too complicated, too fraught with traps.  Lawyers complicate simple things.  We need to simplify.  Life is more simple than we make it.

We make going to trial seem complicated because it is so frightening.  Women trial lawyers are oftentimes perfectionists.  It is frightening to not appear perfect, to appear to be fallible.  We didn't get to this place by appearing weak and for me, appearing weak is my greatest fear,  Embrace your fear.

In a previous post, I claimed that women are better trial lawyers than men.  That was a joke.  It's not true.  The truth is that being an effective trial lawyer has nothing to do with gender.  In the past, women have been too willing to take a subservient role, though.  Why is that?  It is easier to appear to be perfect if we don't risk the perception of imperfection.  Going to trial invites the risk of the perception of imperfection.

This is a plea to women who care, who feel strongly, who have a sense of justice. Go to trial, champion your client's cause. Risk failure, risk rejection.  It is scary, it is hard.  However, you don't need to be the most articulate, beautiful or intelligent person in the room.  But, you do have to be sincere, care, and be spontaneous.  Whom of you cannot do that?  I suspect there is not a one.

Friday, April 2, 2010

Age Discrimination in A Youth-Oriented Society

 I just finished trying an age discrimination case with my law partner, Kristi.  I notice that as I age, I have a greater fondness  for age discrimination cases.  Hmmmm.  Coincidence?  I think not.

Of all the protected categories in discrimination law, age is the one that will affect the largest number of us through the mere passage of time.  Age discrimination is different than other forms of insidious discrimination.  It creeps up on a person.  Racial and sexual harassment act as cannonballs thrust into the victim's gut.  Those forms of discrimination are rarely subtle.  Our society teaches us to repel and oppose unwanted sexual acts and to condemn racial epithets.  Not so with ageist actions and comments.  I think many in our society accepts and condone age discrimination.  Look at the recent Presidential election.  This past election, as with all Presidential elections, was fodder for late night talk show hosts.  Both Obama and McCain were the subject of jokes.  What struck me, however, was that even though both candidates were in "protected categories" under discrimination laws, Obama as an African-American and McCain as an older person, only McCain was the butt of discriminatory jokes.  I am glad that it is not socially or politically acceptable to ridicule President Obama based on his race.  That probably would not have been the case 50 years ago.  Our society has made some progress in the area of race discrimination, thankfully. But, why is acceptable to characterize McCain as old and decrepid?  Doesn't this just perpetuate the stereotype that older people are not as effective as younger people?
In our recent trial, our client, Kathy, our client, was 53 years old when she was fired.  She worked for a company that owned assisted living facilities and she was the executive director of one.  The employer had a young CEO, age 30, who professed that this company was a "young company" and they needed young and energetic employees.  It is ironic that this business prospers from the payments from older people.  The regional administrator took the CEO's comments literally when she fired Kathy.  Kathy, who was so dedicated to the residents in her facility that she and her husband spent Christmas and Thanksgiving with them, was merely tossed aside. When this happens to most folks, they just take it.  Most folks don't have the gumption to fight back.  Filing a lawsuit is hard work and requires someone with the fortitude and determination to withstand hurtful and vicious attacks on their character.  Being a plaintiff in a discrimination case is not for the weak of heart.  It was hard on Kathy, but she is strong. She withstood the trial, received a nice verdict, and is hunkering down for the inevitable appeal.
Why is it socially acceptable to ridicule older people? We are long past the day when someone could excuse racist comments by claiming, "It was just a joke."  Yet, go to buy a birthday card and a significant array of cards with age jokes fill the display.  What is the stereotype of old people - that they are slow, forgetful, set in their ways, obstinate.  Are these characteristics of older people?  Sometimes.  Just as women are sometimes more emotional than men and African-Americans are sometimes better athletes than Caucasians.  The problem is that when we use a broad brush to stereotype a group, individual qualities and strengths are ignored.
Kathy, our client, was one of the most compassionate, nurturing, and caring people I have ever met.  She was a responsible and committed employee.  Not only did she take care of all of her residents, but many of her family members rely on her.  She is the go-to person.  Kathy was terminated from the "young company" that wanted young and energetic workers.  If she hadn't been fired, she would be working there to this day, giving the job her all as she always had.  The "young and energetic" CEO is long since gone from the company, as is every other decision-maker concerning Kathy's termination.  That's the irony of the situation.
Perhaps we need to rethink what is important in America in this day and age of mass lay-offs and treating employees as commodities.  If we value honor, loyalty and respect, perhaps we should recognize that the way corporate America treats our citizens is appalling.  We need to stop this nonsense.   Someday, most of us will be old.  We have the power.